on April 9, 1983, in Sarasota, Florida. The issue to be heard was whether the Class II contractor's license registered in the name of the Respondent should be revoked or suspended or whether other disciplinary action should be taken against the Respondent based on the allegations in the Administrative Complaint.
For Petitioner: Charles F. Tunnicliff, Esquire
For Respondent: Pasquale M. Vescera, pro se
By Administrative Complaint dated November 23, 1982, the Florida Construction Industry Licensing Board, through the Department of Professional Regulation (DPR), seeks to discipline Respondent for various alleged violations of Chapter 489, Florida Statutes outlined in the seven counts in the complaint. Respondent requested a formal hearing. On January 27, 1983, an additional complaint was filed based on other alleged violations of Chapter 489, and again Respondent requested formal hearing. On March 31, 1983, on motion of Petitioner to consolidate, the Hearing Officer consolidated both cases for joint hearing.
However, at the hearing Petitioner loved to continue Case No. 83-575 to afford the parties time to possibly settle that matter. This motion was granted.
At the hearing on Case No. 83-015, Petitioner presented the testimony of Pauline Rodier, Robert Light, Janice D. Conover, Florence Peipher, Jerry Reed, Ralph J. Doney, and, by deposition, Elmer L. Taylor, and Petitioner's Exhibits A
through W. Respondent testified on his own behalf and presented Respondent's Exhibits 1 through 3.
At all times pertinent to this case, Respondent held two active contractor's licenses issued by the State of Florida, RP 0033354 and CP 015029. Respondent's current address is 1316 Hoffner Avenue, Orlando, Florida 32809.
At all times pertinent to this case, Respondent owned the firm Family Pools and did business as a pool contractor under that name.
At no time did Respondent ever qualify his firm, under whose name he did business, with the Florida Construction Industry Licensing Board (CILB).
On some date not specified, in June, 1980, Alphonse J. and Pauline L. Rodier contracted with Family Pools to build a pool at their residence at 601 Michigan Avenue, Englewood, Sarasota County, Florida for a price of 6,700. The contract was signed by Respondent for Family Pools. The pool price was to include a screened enclosure and deck, and the entire package was to be completed by July 4, 1980.
The pool was paid for by two checks from Coast Federal Sayings and Loan Association in Sarasota from the proceeds of a home improvement loan and by a final check in the amount of $900 from the Rodiers, direct, on October 13, 1980. Respondent subcontracted the pool enclosure to Climatrol Screen Company of Enqlewood, Florida, for $2,065 but failed to pay this subcontractor. As a result, on November 26, 1980, Climatrol filed a lien against Rodier's property which was released only when the Rodiers paid an additional $790 which had not been satisfied by the Respondent. Respondent had satisfied part of the debt to Climatrol by relinquishing title to a truck he owned.
On July 3, 1980, Family Pools contracted with Elmer J. and Carla T. Taylor, of Bunnell, Florida, to build an above-ground pool on their property for
$4,800.00. The pool was to have a one year warranty against defective parts and a 20-year prorated replacement policy. According to the contract, the pool price included the pump, liner, filter, and walls, along with all other parts.
The pool was constructed by employees of Family Pools about three or four weeks after the contract was signed.
Not long after the pool was completed and filled, Mr. Taylor noticed that the vinyl liner was protruding out beneath the bottom of the metal retaining wall. His calls to Family Pools were never answered by Respondent with whom he asked to talk and repair work on this problem was not accomplished by the Respondent or Family Pools. Mr. Taylor had to do the work himself and Family Pools would not honor the warranty.
Respondent offers the completion certificate executed by the Taylors on August 21, 1980,as evidence the pool was installed properly and the Taylors were satisfied. Mr. Taylor indicates he signed that certificate in blank under pressure from Respondent's agent, who cajoled him into doing it on the basis that if he did not, Family Pools could not be paid by the finance company under the installment sales contract.
Also, during the period of the one year warranty, the pool pump burned out. Mr. Taylor had to replace that and pay for it himself, as the warranty was not honored. Respondent contends only a 90-day warranty on the pump, but that appears nowhere in the contract, which, in its description of the pool covered by the one year warranty, includes the pump.
On August 29, 1980, Family Pools contracted with Janice Conover to build a swimming pool at her home in Venice, Florida for $4,780. The pool was to be completed approximately 30 days after excavation at the site. Between August 29, 1980, and December, 1980, Ms. Conover paid Family Pools a total of
$4,741 by checks which were endorsed by "P. Vescera d/b/a Family Pools" or "Pasquale M. Vescera." On October 2, 1980, Respondent pulled a permit No. 7330- N from the Sarasota County Building Department, in his own name, to construct Ms. Conover's pool.
In February, 1981, when the pool was only about fifty percent complete, Respondent ceased work on Ms. Conover's pool without giving her any notice or reason therefor. When Respondent stopped work, he had only dug the hole for the pool. The liner had been delivered but was not installed. The braces were there but not affixed, notwithstanding Ms. Conover had paid almost in full for the pool. As a result, she contracted with Richard Thompson, Respondent's former employee, to finish the work Respondent had started because at this point she could not find the Respondent. Thompson installed the brackets, the liner, and the deck. She had to pay extra for the pump, the chemicals, and the sweep--all of which, except for the sweep, she had paid for when she paid Respondent's price. Respondent never returned to complete Ms. Conover's pool.
On July 7, 1980, Family Pools contracted with Robert A. and Florence
L. Peipher to build a pool at their property in Port Charlotte, Florida, for a price of $6,900. Between July 7 and November 28, 1980, the Peiphers paid Family Pools, by checks, the sum of $6,905. All checks-were endorsed for deposit, "P. Vescera d/b/a Family Pools." The pool price was to include a screened pool enclosure and in September 1980, Family Pools contracted with Climatrol to build the screened enclosure for Peipher's pool for $1,807.
Respondent and Family Pools failed to pay Climatrol for the enclosure and as a result, Climatrol filed a lien against the Peipher's property for
$1,807 which was satisfied on March 9, 1981, by the Peiphers who paid Climatrol the amount owed.
On March 2, 1981, the Peiphers filed a complaint against Respondent with the Contractor License Division of the Charlotte County Building Department because of Respondent's failure to pay Climatrol and the resultant cost to them. As a result of this complaint and the subsequent investigation into the allegations, the matter was referred to the Charlotte County Building Board which, at its meeting on May 7, 1981, after notice to Respondent, voted to revoke Respondent's permit privileges in Charlotte County until he made restitution to the Peiphers and to notify the State of Respondent's actions requesting state action against his license.
Respondent suffered severe financial setbacks just about the time of these incidents. He was hospitalized for a period of five or six weeks and upon his return to his business found that he had been "robbed" of approximately
$50,000 worth of fully paid for inventory. When he reported the shortage to the local law enforcement officials, they told him that since there was no evidence of a breaking in, they could do nothing about it.
In addition, he could not recover from his insurance company for the same reason. There was no evidence other than Respondent's sworn testimony that there was a shortage or that he reported the loss to either agency.
Respondent has been in the pool business in Florida for five years and in New Jersey for 32 years before that. He feels the cause of his problem is the fact that he trusted the people who worked for him who took advantage of him. During the entire period of time he was in business in Florida he took no money from the company for his personal use, living instead on income from a mortgage he owned in New Jersey. He subsequently filed for bankruptcy on March 9, 1981. The $15,000 in current accounts receivable he had on the books at that time was utilized in the bankruptcy proceeding to pay creditors. He got-none of it. He is now working in Orlando, Florida, for a pool rehabilitation company owned by his wife and her father.
Respondent alleges that on July 15, 1980, he paid Richard Thompson
$1,100 to complete work started on several pools, including that of Ms. Conover. Review of the prior findings of fact, however, shows that the contract with Ms. Conover was not entered into until approximately 45 days after Respondent supposedly made this payment to cover the work left undone on her pool. In light of that development, I find his contention completely without merit or basis in fact.
Respondent admits that people were hurt as a result of his actions and he regrets this. However, he claims these few incidents are insignificant when compared with the over 500 satisfied customers he alleges he has served over the years.
Finally, Respondent contends that early in 1980, after being advised that he had passed the test to be a certified pool contractor, he wrote to Petitioner and, after advising how he was registered and doing business, asked if he needed to make any changes in license registration. He did in fact do this and received no reply. He thereafter assumed he was acting correctly in that regard and that appears to be a justified assumption.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes, (1981).
In COUNTS ONE, THREE, and FOUR, Respondent is alleged to have violated Sections 489.129(1)(g) and (j) , Florida Statutes (1979),by acting under a name other than on his license and by failing to qualify a business as provided in Section 489.119(2) and (3) , Florida Statutes (1979)
Section 489.129(1)(g) states:
Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with
the personnel of the certificate holder or registrant as set forth in the appli-
cation for the certificate or registration, or as later changed as provided in this act.
Section 489.129(1)(j) , states:
Failure in any material respect to comply with the provision of this act.
Section 489.119 (2) and (3)(b) states:
(2) If the applicant proposes to engage in contracting as a partnership, corpora- tion, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of the business trust and its trust- ees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory com- pliance if a fictitious name is used. Such application shall also show that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by
such business organization. The regis- tration or certification, when issued upon application of a business organiza- tion, shall be in the name of the quali- fying agent, and the name of the business organization shall be noted thereon.
(3)(b) The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same infor- mation to the department as required of applicants under this act.
The evidence clearly shows that Respondent did act under the name Family Pools when his license was in his own name and that he did fail to qualify Family Pools under his license. The evidence also clearly shows, however, that when he was notified of his passing the examination and the issuance of his license, he wrote to the CILB and asked for advice as to whether he needed to take any further action with regard to the licenses. He received no answer.
Admittedly, the fact he may have been misled by the silence from CILB is not a legal defense to this allegation as he had the responsibility to ensure
the correctness of his license, but it does constitute substantial mitigation which should be considered when arriving at a penalty for this violation.
In COUNTS TWO, FOUR, and FIVE, it is alleged that Respondent diverted funds received for the completion of a project in violation of Section 489.129(1)(h) , Florida Statutes (1979)
This statutory provision states:
Diversion of funds or property received for prosecution or completion of a specified construction project or opera- tion when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.
The testimony of Mrs. Rodier, Ms. Conover, Mrs. Peipher, and Mr. Reed of Climatrol clearly indicates that in all cases alleged, Respondent was paid in full and in advance for work which was subcontracted out by him and that he failed to pay the subcontractor with funds already paid to him for that purpose. This evidence establishes clear violations of the statute as alleged and the fact that Respondent's bankruptcy contributed to his clients' losses is no defense.
In COUNT THREE, Respondent is alleged to have made fraudulent, deceptive, untrue, or misleading statements in the practice of his profession in violation of Section 455.227(1)(a), and thereby Section 489.129(1)(c), Florida Statutes (1979). These statutes read:
The licensee has made misleading, deceptive, untrue, or fraudulent represen- tations in the practice of his profession;
(c) Violation of chapter 455.
Mr. Taylor's testimony as to the representations made to him by Respondent's employee regarding the land clearing, permits, and sand base clearly establishes a showing of misleading statements and deception. The failure to honor the warranty may have given rise to a civil cause of action against Respondent for breach of warranty; but in light of his discharge in bankruptcy, there is little likelihood of recovery.
In COUNT FOUR, among other things Respondent is alleged to have abandoned a construction project in which he was under contract for more than 90 days without notice to the owner of just cause, in violation of Section 489.129(1)(k) , Florida Statutes (1979). This provision reads:
Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said pro-
ject without notification to the prospective owner and without just cause.
Ms. Conover's testimony that Respondent dug the hole for her pool and then departed, not to be seen again, with her testimony that she had to hire Mr.
Thompson to finish the job, coupled with Respondent's allegation that he paid Thompson to finish the work, here fully establishes the elements of this allegation against the Respondent, since it was established that his payment to Thompson was made before he ever contracted with this owner.
COUNT SIX alleges a violation of Section 489.129(1)(m), Florida Statutes (1979), in that Respondent is guilty of misconduct. This provision reads:
Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or mis- conduct in the practice of contracting.
Taken as a whole, the evidence presented in this case without question establishes continuing misconduct on the part of the Respondent, at least over a period of several months. That his difficulties may have been contributed to by an alleged but unproved embezzlement, larceny, or other unlawful taking from him does not excuse or in any way justify his failure to contact his customers and at least attempt to make some accommodation with or for them so that their innocent loss could be minimized. His failure to do so is a significant factor to be considered in assessing his attitude toward his misconduct and rehabilitation.
Finally, in COUNT SEVEN, it is alleged that the revocation of Respondent's permit privileges by Charlotte County, Florida, is a violation of Section 489.129(1)(i) , Florida Statutes (1979), which states:
Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.
The evidence as to the action of the Charlotte County Building Board in May, 1981, establishes all the elements of this violation.
